If you are injured in an accident and the fault lies with the other party, you may consider starting a lawsuit against them. This may be an unfamiliar process, and you may wonder what is required to advance a successful claim establishing that the other party has been negligent (at fault). This article explains what a negligence claim looks like, and the legal elements that you need to prove to hold the other party accountable.
Civil versus Criminal Lawsuits
In general, lawsuits involving personal injuries that are based on someone else’s negligence are called torts. A tort is a civil wrong; that is, it is a wrong committed by a person or corporation against another person or corporation.
Tort actions are different from criminal actions in that they involve private parties and are aimed at providing an injured person with monetary compensation. By contrast, criminal actions are prosecuted by the Crown and are aimed at imposing punishment for breaking the law. However, in some cases, the same event can result in a tort claim as well as criminal charges – for example, if an accident has been caused by a drunk driver, the driver may be charged with drinking and driving under the Criminal Code and may at the same time face a tort claim filed by people who were injured in the accident and are looking for financial compensation.
Since criminal cases may result in imprisonment, the standard of proof to find someone guilty is high – “beyond a reasonable doubt.” In tort cases, however, where only money is at stake, the standard of proof is less demanding. The judge or jury only needs to be convinced that the defendant is responsible on a balance of probabilities, which means that there is a better than 50-50 chance that the defendant is responsible.
Elements of a Negligence Claim
There are four basic elements a plaintiff must be able to establish to succeed in a negligence action:
- A duty of care owed by the defendant to the plaintiff;
- The standard of care against which the defendant’s conduct will be measured.
- Causation for the plaintiff’s injuries;
- The nature and extent of damages suffered.
The first element – duty of care – is based on something called the “neighbour principle.” A “neighbour” is someone with a close enough relationship to the defendant that the defendant should have had him/her in mind at the time of the events giving rise to the accident. For example, for someone driving a car, “neighbours” are typically anyone who might be impacted by the manner of driving (e.g., other drivers, vehicle passengers, pedestrians, etc.) If the plaintiff was someone that the defendant should have had in mind, then a duty of care is owed.
Once a duty of care is established, the next step is to identify the standard of conduct that was required of the defendant in the circumstances. This is called the standard of care, and is assessed using the “reasonable person” test: did the defendant behave the way a reasonable person would behave in the same circumstances? If the court concludes that the defendant acted reasonably, then they have not breached the standard of care and are not considered negligent. The standard of what is “reasonable” varies with the activity and there will often be case law helping to establish what courts have considered to be “reasonable” conduct. In cases involving allegations of professional negligence (for example, medical malpractice), expert evidence may also be used to establish what a competent professional would have done in the same circumstances.
If a defendant has breached the applicable standard of care, that breach must then be shown to have caused the plaintiff’s injuries. Causation is examined using the “but for” test: but for the defendant’s conduct, would the plaintiff have suffered injury? Even if the defendant owed a duty of care and breached the standard of care, they will not be liable if their conduct was not the actual cause of the plaintiff’s injuries. It is also possible that there may be more than one party whose conduct contributed to the accident. For example, a motor vehicle accident may result from a drunk driver, a failure by the municipality to properly maintain the roads, and negligent driving by the plaintiff him/herself. A court will consider all those factors to determine whether a defendant’s conduct was a “but for” cause of the injuries that occurred.
In addition, there may be issues proving causation if you suffered from a pre-existing medical condition at the time the accident occurred. You can find more information on that topic in our post: Can I still receive a damage settlement if I had pre-existing medical issues?
The last step in the negligence analysis is to identify the plaintiff’s damages and assign a dollar value to them. Damages include thinks like compensation for physical or psychological injuries, lost wages, costs of treatment and equipment necessary for the plaintiff’s recovery. Assessment of injuries and the losses flowing from them usually requires evidence from medical and actuarial experts.
Impact of Contributory Negligence
If a plaintiff successfully establishes that a defendant owed him/her a duty of care, breached the standard of care, and that breach was the cause of the plaintiff’s injuries and losses, then the defendant will be found liable.
However, as mentioned above, it is possible for a court to find that an accident resulted from more than one cause, and this may include negligent conduct by the plaintiff him/herself. The fact that a plaintiff may have done something, or failed to do something, that contributed to their injuries does not absolve the defendant of liability; however, the amount of compensation he/she owe may be reduced to the extent that the plaintiff is found to be contributorily negligent. For example, if the plaintiff and defendant are equally responsible for the accident that occurred, the defendant will be required to pay for half of the plaintiff’s losses. However, if the defendant is primarily responsible for the accident and the plaintiff’s actions played only a minor role, the defendant may be required to bear a higher proportion of the liability (e.g., 75%) and will owe compensation to the plaintiff for that percentage of their injuries.
There are numerous ways that a plaintiff can be found contributorily negligent. For example, in the context of a motor vehicle accident, these include speeding or other unsafe driving, not wearing a seatbelt, not having their lights on, or using a cell phone while driving. It is important to remember, however, that even if the plaintiff has been negligent in some way, they are still entitled to claim damages; they just may find their damage award reduced to account for the role they played in their own accident.
For more information on other factors that may limit damages awards you may find it helpful to review our post: Considerations that may limit your personal injury damage award.
If you have been injured in an accident and are wondering about the steps you need to take to recover damages, CONTACT the lawyers at CAM LLP for a free legal consultation.
Wondering what you can expect from us when you get in touch? Read: What to expect from CAM LLP Injury Lawyers.
